26 U.S. Code § 6664 - Definitions and special rules

For purposes of this part, the term “underpayment” means the amount by which any tax imposed by this title exceeds the excess of—

(1)the sum of—

(A)the amount shown as the tax by the taxpayer on his return, plus

(B)amounts not so shown previously assessed (or collected without assessment), over

(2)the amount of rebates made.

For purposes of paragraph (2), the term “rebate” means so much of an abatement, credit, refund, or other repayment, as was made on the ground that the tax imposed was less than the excess of the amount specified in paragraph (1) over the rebates previously made.

(b) Penalties applicable only where return filed

The penalties provided in this part shall apply only in cases where a return of tax is filed (other than a return prepared by the Secretary under the authority of section
6020(b)).

(c) Reasonable cause exception for underpayments

(1) In general

No penalty shall be imposed under section
6662 or
6663 with respect to any portion of an underpayment if it is shown that there was a reasonable cause for such portion and that the taxpayer acted in good faith with respect to such portion.

(2) Exception

Paragraph (1) shall not apply to any portion of an underpayment which is attributable to one or more transactions described in section
6662(b)(6).

(3) Special rule for certain valuation overstatements

In the case of any underpayment attributable to a substantial or gross valuation overstatement under chapter 1 with respect to charitable deduction property, paragraph (1) shall not apply. The preceding sentence shall not apply to a substantial valuation overstatement under chapter 1 if—

(A)the claimed value of the property was based on a qualified appraisal made by a qualified appraiser, and

(B)in addition to obtaining such appraisal, the taxpayer made a good faith investigation of the value of the contributed property.

(4) Definitions

For purposes of this subsection—

(A) Charitable deduction property

The term “charitable deduction property” means any property contributed by the taxpayer in a contribution for which a deduction was claimed under section
170. For purposes of paragraph (3), such term shall not include any securities for which (as of the date of the contribution) market quotations are readily available on an established securities market.

(B) Qualified appraisal

The term “qualified appraisal” has the meaning given such term by section
170(f)(11)(E)(i).

(C) Qualified appraiser

The term “qualified appraiser” has the meaning given such term by section
170(f)(11)(E)(ii).

No penalty shall be imposed under section
6662A with respect to any portion of a reportable transaction understatement if it is shown that there was a reasonable cause for such portion and that the taxpayer acted in good faith with respect to such portion.

(2) Exception

Paragraph (1) shall not apply to any portion of a reportable transaction understatement which is attributable to one or more transactions described in section
6662(b)(6).

(A)the relevant facts affecting the tax treatment of the item are adequately disclosed in accordance with the regulations prescribed under section
6011,

(B)there is or was substantial authority for such treatment, and

(C)the taxpayer reasonably believed that such treatment was more likely than not the proper treatment.

A taxpayer failing to adequately disclose in accordance with section
6011 shall be treated as meeting the requirements of subparagraph (A) if the penalty for such failure was rescinded under section
6707A(d).

(4) Rules relating to reasonable belief

For purposes of paragraph (3)(C)—

(A) In general

A taxpayer shall be treated as having a reasonable belief with respect to the tax treatment of an item only if such belief—

(i)is based on the facts and law that exist at the time the return of tax which includes such tax treatment is filed, and

(ii)relates solely to the taxpayer’s chances of success on the merits of such treatment and does not take into account the possibility that a return will not be audited, such treatment will not be raised on audit, or such treatment will be resolved through settlement if it is raised.

(B) Certain opinions may not be relied upon

(i)In general
An opinion of a tax advisor may not be relied upon to establish the reasonable belief of a taxpayer if—

(I)the tax advisor is described in clause (ii), or

(II)the opinion is described in clause (iii).

(ii)Disqualified tax advisors
A tax advisor is described in this clause if the tax advisor—

(I)is a material advisor (within the meaning of section
6111(b)(1)) and participates in the organization, management, promotion, or sale of the transaction or is related (within the meaning of section
267(b) or
707(b)(1)) to any person who so participates,

(II)is compensated directly or indirectly by a material advisor with respect to the transaction,

(III)has a fee arrangement with respect to the transaction which is contingent on all or part of the intended tax benefits from the transaction being sustained, or

(IV)as determined under regulations prescribed by the Secretary, has a disqualifying financial interest with respect to the transaction.

(iii)Disqualified opinions
For purposes of clause (i), an opinion is disqualified if the opinion—

(I)is based on unreasonable factual or legal assumptions (including assumptions as to future events),

(II)unreasonably relies on representations, statements, findings, or agreements of the taxpayer or any other person,

(III)does not identify and consider all relevant facts, or

(IV)fails to meet any other requirement as the Secretary may prescribe.

Section 1409(c) ofPub. L. 111–152, which directed the amendment of section
6664 without specifying the act to be amended, was executed to this section, which is section 6664 of the Internal Revenue Code of 1986, to reflect the probable intent of Congress. See 2010 Amendment notes below.

Section 1219(a)(3), (c)(2) ofPub. L. 109–280, which directed the amendment of section
6664 without specifying the act to be amended, was executed to this section, which is section 6664 of the Internal Revenue Code of 1986, to reflect the probable intent of Congress. See 2006 Amendment notes below.

Amendment by section 1409(c)(1) ofPub. L. 111–152applicable to underpayments attributable to transactions entered into after Mar. 30, 2010, see section 1409(e)(2) ofPub. L. 111–152, set out as a note under section
6662 of this title.

Amendment by section 1409(c)(2) ofPub. L. 111–152applicable to understatements attributable to transactions entered into after Mar. 30, 2010, see section 1409(e)(3) ofPub. L. 111–152, set out as a note under section
6662 of this title.

Effective Date of 2006 Amendment

Amendment by section 1219(a)(3) ofPub. L. 109–280applicable to returns filed after Aug. 17, 2006, with special rule for certain easements, see section 1219(e)(1), (3), ofPub. L. 109–280, set out as a note under section
170 of this title.

Amendment by section 1219(c)(2) ofPub. L. 109–280applicable to appraisals prepared with respect to returns or submissions filed after Aug. 17, 2006, see section 1219(e)(2) ofPub. L. 109–280, set out as a note under section
170 of this title.

Effective Date of 2004 Amendment

Amendment by Pub. L. 108–357applicable to taxable years ending after Oct. 22, 2004, with special rule for application of subsec. (d)(3)(B) [now (d)(4)(B)] of this section, see section 812(f) ofPub. L. 108–357, as amended, set out as a note under section
6662 of this title.

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